TaxTMI 
TaxTMI 
2021 (8) TMI 681
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....t Limited ("The Transferee Company") and their respective Shareholders & Creditors (the Scheme'). 2. The Petitioner Companies had filed a joint application being CA (CAA) No. 84 of 2020 before this Tribunal seeking dispensation of the meetings of the Equity Shareholders, Secured Creditors and Unsecured Creditors of the Petitioner Transferor Companies and Secured Creditors of the Petitioner Transferee Company and appropriate directions were sought for holding and convening meeting of the Equity Shareholders and Unsecured Creditors of the Petitioner Transferee Company. By an order dated 18th December 2020 made in CA (CAA) No. 84 of 2020, this Tribunal allowed the Application inter alia, dispensing with the holding of meetings of the Equity Shareholders, Secured Creditors and Unsecured Creditors of the Petitioner Transferor Companies and Secured Creditors of the Petitioner Transferee Company and directing for holding and conducting of the meeting of the Equity Shareholders and Unsecured Creditors of the Petitioner Transferee Company. 3. The Tribunal in its order dated 18th December 2020 had directed the Petitioner Companies to issue notices in Form No. CAA. 3 to (i) the Cent....
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....cured Creditors of the Petitioner Transferee Company present and voting at the meeting. 5. The Petitioner Companies have jointly filed the present petition being CP (CAA) 20 of 2021 before this Tribunal seeking sanction of the Scheme. 6. This Tribunal by order dated 13th April 2021, admitted the petition and directed issuance of notice of hearing to be advertised in English daily 'Business Standard', Mumbai and Ahmedabad Edition and Gujarati translation thereof in 'Jai Hind' Rajkot Edition not less than ten days before the date fixed for hearing, calling for their objections, if any, on or before the date of hearing. This Tribunal also directed issuance of notice to Regional Director, Registrar of Companies, Official Liquidator and Income tax informing them about the date of hearing. 7. Pursuant to the aforesaid order dated 13th April 2021, passed by this Tribunal, the Petitioner Companies filed affidavit of service with this Tribunal submitting the proof of service of publication and also proof of issue of notice to the Regional Director, Registrar of Companies, Official Liquidator and Income tax. 8. In response to the representation made by the Regiona....
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....hermore, the Petitioner Companies undertake to comply with the provisions of FEMA and RBI guidelines. 6. With reference Para 2(h) of the RD Report and observations of the Registrar of Company ('RoC') in their report wherein it is stated that as per Index of charges in the MCA Portal there are 14 open charges against which 11 are open secured charge IDs are in favour of HDFC Bank Limited amounting to Rs. 2444.46 million and 3 are in favour of Axis Bank Limited amounting to Rs. 7.98 millions as on the date of report i.e. 8.2.2021. With reference to the same it is submitted as follows:- a. It is submitted that out of the fourteen Charges, eleven charges are pertaining to HDFC Bank Limited (Charge ID. No. 100299310, 100282065, 100289063, 100279716, 100278090, 100278213, 100271816, 100047840, 10047779, 10047778 and 10340668) and three charges are of Axis Bank Limited (Charge ID No. 100325693, 100326270 and 100279252). HDFC Bank Ltd. has given its consent for their outstanding amount consisting of eleven charges referred above, which is annexed from page No. 652 to 653 with CA (CAA) No. 84 of 2020 filed. It is further submitted that since the consent of HDFC Ban....
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.... 239 of the Companies Act. 14. With reference to clause 27 of the OL report for the Petitioner Transferor Company No. 1, the Petitioner Transferor Company No. 1 undertake to ensure statutory compliance of all the applicable laws and on the sanctioning of the Scheme, it shall not absolve from any statutory liability, in any manner. 15. With reference to clause 28 of the OL report for the Petitioner Transferor Company No. 1, it is submitted that the Petitioner Transferor Company No. 1 shall pay related office expenses of the office of the Official Liquidator as may be considered appropriate by the Hon'ble Tribunal 16. With reference to clause 29 and 30 of the OL report for the Petitioner Transferor Company No. 1, the Petitioner Company No. 2 undertake to file certified copy of the order sanctioning the Scheme with the Registrar of Company within 30 days from the date of passing of order and undertakes to comply with the provision of Section 232(5) of the Companies Act, 2013 17. It is submitted that the Official Liquidator (hereinafter referred to as 'OL') has filed its representation for the Petitioner Transferor Company No. 2 vide Repo....
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....e of Amalgamation as approved by us forms part of this order and is attached herewith. 13. The sanction/approval of the Scheme does not come on the way of any Competent Authority(ies) to take any action in the event of violation of any law for the time being in force. 14. It is further ordered that the Petitioner Companies shall comply with Rule 17(2) of Companies (Compromise, Arrangements and Amalgamations) Rules, 2016 with respect to filing of order, if any, for confirmation of the Scheme in Form INC-28 with the Registrar of Companies, Gujarat. 15. Fees of Regional Director is quantified as Rs. 20,000/- in respect of each of the Petitioner Companies. Fees of Official Liquidator is quantified as Rs. 15,000/- in respect of Petitioner Transferor Companies. 16. Filing and issuance of drawn up orders are dispensed with. All concerned authorities to act on a copy of this order along with the Scheme duly authenticated by the Registrar of this Tribunal. The Registrar of this Tribunal shall issue the certified copy of this order along with the Scheme immediately. 17. This Company Petition is accordingly allowed and disposed of. Annexure 1 SCHEME OF....
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....ompany Simultaneously, the transferee company-is also desirous of consolidating its investment in only wholly owned subsidiary company. As a step towards such rationalization, it is proposed to merge the Transferor Companies into the Transferee Company; e) The promoters would continue to hold the same percentage of shares in the Transferee Company, pre and post the amalgamation. There would also be no change in the financial position of the Transferee Company. All cost, charges and expenses relating to the Scheme would be borne out of the assets (other than shares of the Transferee Company) of the Transferor Company 1. Any expense, exceeding the assets of the Transferor Company 1 would be borne by the shareholders of the Transferor Company 1 directly: f) Further, the Scheme also provides that the shareholders of the Transferor Companies shall indemnify the Transferee Company and keep the Transferee Company indemnified for liability, claim, demand, if any; and which may devolve on the Transferee Company on account of this amalgamation. Accordingly, the Board of Directors of the Transferor Companies and the Transferee Company have formulated this Scheme for the t....
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.... the Board of Directors or such committee of Directors: "Effective Date" means last of the dates on which the certified copies of the order sanctioning this Scheme of Amalgamation passed by the NCLT is filed with the Registrar of Companies by the Transferor Companies and the Transferee Company- and if the certified copies are filed on different dates, last of such dates: "Record Hate" means the date fixed by the Board of Directors or committee thereof, if any, of the Transferee Company for the purpose of determining the members of the Transferor Companies to whom New Equity Shares will be allotted pursuant to this Scheme: "SEBI" means the Securities and Exchange Board of India established under the Securities and Exchange Board of India Act, 1992; "Stock Exchanges" means BSE Limited. National Stock Exchange of India Ltd. and any other stock exchange(s): Scheme" or "the Scheme" or "this Scheme" means this Scheme of Amalgamation in its present form as submitted with the NCLT or this Scheme with any modification(s) made under Clause 19 of the Scheme: "Transferee Company" or "GSCL" means Gujarat Sidhee Cement Limited (CIN: L26940GJ1....
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....issued, subscribed and paid-up capital of the Transferor Company. The share capital of the Transferee Company as on 31st March, 2020 is as under: Subsequent to 31st March 2020 and till the date of approval of the Scheme by the Board of Directors of the Transferee Company, the Transferee Company has on 17.4.2020, allotted 647051 equity shares of Rs. 10 Each to its employees under its ESOP'S scheme. Further, the Transferor Company I holds 4,88,00,000 no. of equity shares of Rs. 10 each fully paid up in the Transferee Company representing about 55.82% of the total paid up share capital of the Transferee Company: The Transferor Company 2 is the wholly ovine subsidiary of the Transferee Company holding nil shares of the Transferee Company, PART B AMALGAMATION OF EACH OF THE TRANSFEROR COMPANIES INTO THE TRANSFEREE COMPANY 4. TRANSFER AND VESTING OF TRANSFEROR COMPANY 1 WITH THE TRANSFEREE COMPANY With effect from the Appointed Dale, the business of the Transferor Company 1 including its properties and assets (whether movable tangible or intangible) of whatsoever nature including investments, shares, debentures, securities, loans and advances, licenses, permit....
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....n up to comply with the conditions relating to "amalgamation" as specified under Section 2(1B) of the Income-tax Act, 1961. If any terms or provisions of the Scheme are inconsistent with the provisions of Section 2(1B) of the Income-tax Act, 1961, the provisions of Section 2(1B) of the Income-tax Act, 1961 shall be to the extent of such inconsistency prevail and the Scheme shall stand modified to that extent to comply with Section 2(IB) of the Income-tax Act, 1961: such modification to not affect other parts of the Scheme. Upon the Scheme becoming effective, the Transferee Company shall be expressly permitted to revise and file its financial statements, income tax returns including tax deducted at source returns, GST returns, and other tax returns (including revised returns) as may be necessary and expressly reserves the right to make such provisions in its returns, and to claim refunds and credits, etc. pertaining to the Transferor Company 1 and notwithstanding that the statutory period for such revisions and filing may have lapsed. The Transferee Company shall be entitled to claim and be allowed credit or benefits of all tax deduction certificates, advance tax or other tax pay....
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....the Effective Date, shall stand transferred to and/or deemed to be transferred to and vested in the Transferee Company so as to become the properties and assets of the Transferee Company. Without prejudice to Clause 5.1. all movable assets including sundry debtors, receivables, bills, credits, loans and advances, if any whether recoverable in cash or in kind or for value to be received, bank balances, investments, earnest money and deposits with any government, quasi-government local or other authority or body or with any company or other person, the same shall, on and from the Appointed Date, stand transferred to and vested in Transferee Company without any notice or other intimation to the debtors (although Transferee Company may without being obliged and if it so deems appropriate at its sole discretion, give notice in such form as it may deem fit and proper, to each person, debtor, or depositor, as the case may be that the said debt. loan, advance, balance or deposit stands transferred and vested in Transferee Company) subject to existing charges or lis pendens, if any thereon. The liabilities shall also, without any further act, instrument or deed be transferred to and v....
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....ly paid up equity share of Rs. 10 each of the Transferee Company shall he issued and allotted as fully paid up to the equity shareholders of the Transferor Company 1 in proportion of their holding in the Transferor Company 1". (Equity shares to be issued by the Transferee Company as above are referred to as "New Equity Shares"). It is clarified that any positive net assets of the Transferor Company 1 as on the appointed date other than this investment in the shares of the Transferee Company will not affect - alter the share exchange ratio. The Transferor Company I holds 4,88,00,000 equity shares of the Transferee Company and pursuant to the amalgamation, the Transferee Company shall issue the same number of New Equity Shares i.e. 4,88,00,000/- to the shareholders of the Transferor Company I. In the event the Transferor Company I holds more than 4,88,00,000/- fully paid up equity shares of the Transferee Company (without incurring any additional liability) on the Record Date, New Equity Shares to be issued by the Transferee Company to the shareholders of the Transferor Company 1 shall stand increased by such additional number of equity shares held by the Transferor Company ....
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.... the Transferor Company 1, as provided in the Scheme and under Single window' clearance concept. 7. CANCELLATION OF EQUITY SHARES OF THE TRANSFEREE COMPANY HELD BY THE TRANSFEROR COMPANY 1. Upon the Scheme becoming effective, the issued, subscribed and paid up share capital of GSCL. to the extent of the shares held by Transferor Company 1 in the Transferee Company, shall be automatically cancelled in terms of Section 66 of the Act. The said cancellation shall result in reduction of capital under section 66 of the Act. However, since the aforesaid reduction is consequential and is proposed as an integral part of the Scheme, the Transferee Company: shall not be required to undertake separate procedure under section 66 of the Act. Further, as the aforesaid reduction does not result in either diminution of liability in respect of unpaid share capital or payment to any shareholder of any paid-up share capital, the provisions of section 66 of the Act shall not be applicable. The order of the NCLT sanctioning the scheme shall be deemed to be the Order under section 66 of the Act for the purpose of confirming reduction. Further, the Transferee Company shall not be required to ....
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....er the Scheme, the equity shares of the Transferee Company held by the Transferor Company 1 shall stand cancelled and as a result equivalent equity share capital of the Transferee Company and the book value of investments held by the Transferor Company 1 in the Transferee Company shall also stand cancelled. The aggregate lace value of New Equity Shares issued by the Transferee Company to the shareholders of the Transferor Company 1 pursuant to the Scheme shall be credited to the Equity Share Capital Account of the Transferee Company. As provided under the Scheme, the carrying amount of investments in the equity shares of the Transferor Company 2 held by Transferee Company shall stand cancelled and there shall be no further obligation in that behalf. As a result, the craning amount of the investments in the equity shares of the Transferor Company 2 and the Transferee Company's portion of equity of the Transferor Company 2 will be offset. The effect of the accounting entries in respect of the Transferor Company 2 will be that the assets, liabilities and reserves of the Transferor Company 2 which were appearing in the consolidated financial statements of the Transferee Co....
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.... a. Upon sanction of this Scheme, the Authorised Share Capital of the Transferee Company shall automatically- stand increased without any further act instrument or deed on the part of the Transferee Company including therein the payment of stamp duty and fees payable to Registrar of Companies. Gujarat, by the amount of Authorized Share Capital of each of the Transferor Companies as provided below: b. The Memorandum of Association of the Transferee Company (relating to the Authorised Share Capital) shall, without any further act instrument or deed, be and stand altered, modified and amended, pursuant to Sections 13, 14, 61, 230 to 232 of the Act and other applicable provisions of the Act as the case may be and for this purpose the stamp duties and the fees paid on the Authorised Share Capital of the Transferor Companies shall be utilized and applied to the above referred increased authorised share capital of the Transferee Company and no payment of any extra stamp duty and/or fee shall be payable by the Transferee Company for increase in its authorized share capital to that extent, c. Consequent upon the amalgamation, the Authorised Share Capital of the Transferee....
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....all not be required (o pass separate resolutions as required under the Act. 11. CONDUCT OF BUSINESS TILL EFFECTIVE DATE With effect from the Appointed Date and upto and including the Effective Date: a. The Transferor Companies shall be deemed to have been earning on and shall carry on its business and activities and shall be deemed to have held and stood possessed of and shall hold and stand possessed of all its properties and assets pertaining to business of the Transferor Companies for and on account of and in trust for the Transferee Company. The Transferor Companies hereby undertake to hold the said assets with utmost prudence until the Effective Dale. b. The Transferor Companies shall not except in the ordinary course of business or without prior written consent of the Transferee Company, alienate charge, mortgage, encumber or otherwise deal with or dispose of any of its properties or part thereof of the Transferor Companies. c. Any income accruing or arising to the Transferor Companies shall for all purposes be treated and deemed to be in profits or income of the Transferee Company. d. During the pendency of this Scheme in the event t....
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....igation to make contributions to the said fund in accordance with the provisions of such fund, bye laws etc. in respect of such employees of the Transferor Companies. 13. LEGAL PROCEEDINGS a. If any suit, appeal or other proceeding of whatever nature by or against the Transferor Companies is pending, the same shall not abate or be discontinued or in any way be prejudicially affected by reason of or by anything contained in this Scheme, but the said suit, appeal or other legal proceedings may be continued prosecuted and enforced by or against the Transferee Company, as the case may be in the same manner and to the same extent as it would or might have been continued, prosecuted and enforced by or against the Transferor Companies as if this Scheme had not been made. b. In case of any litigation, suits, recovery proceedings which are to be initiated or may be initiated by or against the Transferor Companies, the Transferee Company shall be made part) thereto and any payment and expenses made thereto shall be the liability of the Transferee Company. The shareholders of the Transferor Companies shall indemnify the Transferee Company from any loss, liability, cost, c....
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....r Clause 4 and 5 above and the continuance of proceedings by or against the Transferor Companies under Clause 13 above shall not affect any transaction or proceedings already concluded by the Transferor Companies on or after the Appointed Date till the Effective Date (both days inclusive), to the end and intent that the Transferee Company accepts and adopts all acts, deeds and things done and executed by the Transferor Companies in respect thereto as done and executed on behalf of the Transferee Company. 17. DISSOLUTION OF THE TRANSFEROR COMPANIES a. On the Scheme becoming effective, the Transferor Company 1 shall stand dissolved automatically without winding up in accordance with the provisions of Section 230-232 of the Companies Act, 2013, b. On and from the Effective Date, name of the Transferor Company I shall be removed from the records of the Registrar of Companies and records relating to the Transferor Company 1 shall be transferred and merged with the records of the Transferee Company. c. On the Scheme becoming effective, the Transferor Company 2 shall stand dissolved automatically without winding up in accordance with the provisions of Section....
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....eholders in favor of the proposal are more than the number of votes cast by the ''public" shareholders against it; c. The sanction or approval of the Appropriate Authorities concerned being obtained and granted in respect of any of the matters in respect of which such sanction or approval is required: d. The sanction of the Scheme by the NCLT or any other authority under Sections 230 to 232 and other applicable provisions of the Act. 21. EFFECT OF NON-RECEIPT OF APPROVALS In the event of any of the said sanctions and approvals referred to in the preceding clause not being obtained and/or the Scheme not being sanctioned by the NCLT or such other competent authority and/or the order not being passed as aforesaid before 31st December 2020 or within such further period or periods as may be agreed upon between the Transferor Companies and the Transferee Company by their respective Board of Directors (and which the Board of Directors of the Companies are hereby' empowered and authorized to agree to and extend the Scheme from time to time without any limitation) this Scheme shall stand revoked, cancelled and be of no effect, save and except in respect o....
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[email protected] CIN No: US1900GJ1994PTC098196 List of Assets forming part of the Transferor Company 2 as on 31st December 2020 to be transferred to the Transferee Company pursuant to the Scheme sanctioned by the Hon'ble National Company Law Tribunal, Ahmedabad Bench (Freehold Property of the Transferor Company 2) Sr. No. Survey No. PARTI Area in Sq. Meters NIL PART II (Leasehold Properties of the Transferor Company 2) Description Sr. No. Name of the Owner of the Property Address of Property NIL PART III (Other Stock, Shares, Debentures, any other charges in action of the Transferor Company 2) Sr. No. Particulars No. of Share Face Value/ per Share Face Value 1 Investment in Equity Shares of Saurashtra 1,36,58,167 10 13,65,81,670 Cement Limited Sr. No. 1 2 3 1 2 3 4 5 Date: 15/6/2021 Place: Mumbai PART IV (Liability and assets to be transferred to Transferee Company) Liabilities Trade payables Other current liabilities Current tax liabilities (Net) Assets Security Deposits Taxes Paid Cash and cash equivalents Accrued Interest o....